Patroba Jelagat Simotwo & 4 others v Phillister Auma Simba [2019] KEELC 3663 (KLR)
The bottom line
#The Environment and Land Court cancelled titles created by a vendor's fraudulent subdivision and ordered the land resurveyed to match the ¼-acre plots buyers actually purchased.
What this practically means
#Executive summary
#Key legal issues
#Intention of the parties in the sale agreements
The parties intended to sell and buy the alphabetical plots A-L of about ¼ acre each as described in the parallel allotment letters, not resurveyed plots of varying size.
The sale agreements described the plots by alphabetical identity (A-L), matching the parallel allotment letters which had already carved the land into ¼ acre plots. Had the intention been different, the agreements would have said so and would have specified sizes. No provision existed for pro-rating plots to amounts paid; price and subject matter were fixed.
Fraudulent subdivision
Patroba's subdivision of the land into 18 plots, behind the purchasers' backs and inconsistent with the plots sold, was fraudulent; the resulting titles are liable to cancellation.
Patroba subdivided the land without consulting the purchasers in occupation, carving plots smaller than ¼ acre for those who refused her demands for extra money and retaining the balance for herself. The court held the subdivision plan was a fraud aimed at short-changing the purchasers of the plots they had bought and paid for in full.
Innocent purchaser for value
Makhulu was not an innocent purchaser for value because he bought the plot while litigation over it was pending, the plot was occupied, and he made no inquiries of the party in possession.
Makhulu purchased Plot 713 in September 2010 when the suit over it was pending. Phillister was in possession and putting up a fence. A prudent purchaser would have inquired of her. Being never in possession, he could not rely on the proviso in section 143(2) of the Registered Land Act. The sale was aimed at defrauding Phillister.
Rectification of the register under section 143 of the Registered Land Act
The court ordered rectification by cancelling titles obtained by fraud, including the title of the non-protected purchaser.
Section 143(1) permits rectification where a registration was obtained by fraud or mistake; section 143(2) protects a proprietor in possession for valuable consideration without knowledge of the fraud. Since Makhulu was never in possession, he fell outside the protection, and Patroba's titles were themselves products of fraud.
Payment of purchase price
The court found the defendants paid the full purchase price under all the sale agreements, rejecting Patroba's claims of outstanding balances, rates and survey fees.
Patroba could not state precisely what she was owed, referring vaguely to documents not in court. Rates and survey charges were also not claimable because the subdivision she undertook was not the one agreed under the sale agreements.
Legal principles established
#- A vendor who sells plots identified by an allotment letter/plan cannot unilaterally subdivide the land inconsistently with what was sold; such subdivision is fraudulent and titles founded on it are liable to cancellation.
- A purchaser of land that is occupied and subject to pending litigation, who makes no inquiries of the person in possession, does not qualify as an innocent purchaser for value.
Court orders
#- 1.Titles of Patroba to parcels Nakuru Municipality Block 14/708, 709, 710, 711, 713, 714, 715, 716, 717, 718 and 719 cancelled
- 2.Title of Joseph Keya Makhulu to Nakuru Municipality Block 14/713 cancelled
- 3.Nakuru District Land Registrar and District Land Surveyor to resurvey the cancelled parcels and process new numbers conforming to the size and identity of old plots D, F, G and H
- 4.New parcels to be registered in the names of the defendants according to the plots they purchased (D, F, G and H)
- 5.Suits by Patroba (HCCC No. 291 of 2009) and Makhulu (HCCC No. 197 of 2012) dismissed
- 6.Counterclaim of Phillister and claim of plaintiffs in ELC No. 231 of 2013 allowed
- 7.Costs awarded against Patroba for suit 291 of 2009 (including counterclaim) and suit 231 of 2013; costs against Makhulu for suit 197 of 2012 (including counterclaim)
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (consolidated suits transferred from the High Court at Nakuru)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patroba Jelagat Simotwo & 4 others v Phillister Auma Simba [2019] KEELC 3663 (KLR)", Case Analysis (2019). Nakuru HCCC No. 291 of 2009; Nakuru HCCC No. 197 of 2012; Nakuru ELC No. 231 of 2013 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3663/eng@2019-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.